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JOHN W. ODOM 

CONFEDERATE MEMORIAL 

PRIZE ORATION 



BY TONEY A. HARDY 



JOHN W. ODOM CONFEDERATE MEMORIAL 
PRIZE ORATION 



BY 



TONEY A. HARDY. 

Delivered at the University of Mississippi Annual 
Commencement, June 3, 1907. 

What Constituted the Southern States the True 
Defenders of the Constitution and the Union. 



"Rich in patriotism, in intellectual force, in civic 
and military achievements, she advances, bearing with 
her the proud heritage, advocated in council cham- 
ber, justified at the bar, and vindicated in battle, 
principles which constituted the Southern States the 
true defenders of the Constitution and the Union." 



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1 



EXPLANATORY 

THE JOHN W. ODOM CONFEDERATE MEMORIAL PRIZE. 

"Mr. John W. Odom, of DeSoto County, has donated 
to the University the sum of $2,000, 'the interest only 
of which shall be awarded each year as a prize to that 
student in the University of Mississippi who shall 
present the best essay or oration (1) in defense of the 
constitutional and legal right of the Southern States 
in 1861 to secede from the Federal Union, or (2) upon 
some topic the central thought and purpose of which 
shall be to defend the course of the people of the 
seceding States and their leaders, provided such essay 
or oration shall be approved, and such award shall be 
made by a committee of three disinterested judges 
appointed by the Chancellor of the University. At 
least every third year, commencing with the year 
1906, the subject shall be a defense of the constitu- 
tional and legal right of the Southern States in 1861 
to secede from the Federal Union. For the inter- 
vening years allied subjects as above indicated shall 
be chosen and assigned by the Chancellor of the Uni- 
versity of Mississippi and his successors in office. 

" 'The most meritorious essay or oration offered 
each year in competition, and for which the prize shall 
be awarded, shall be presented in public during the 
commencement exercises of the University, and other 
essays or orations offered in the same competition 
may be so presented if deemed advisable by the fac- 
ulty of the University. 

" 'The sum herein donated to the University of 
Mississippi for the purpose herein stated shall be 
known as the John W. Odom Fund, and the prize 
hereby founded and established in the University 
shall be known as the John W. Odom Confederate Me- 
morial Prize.' " 



RULES GOVERNING THE CONTEST FOR THE JOHN W. 

ODOM PRIZE. 

1. The contest shall be open to all students of the 
University. 

2. The prize shall be awarded upon the nature and 
scope of research and excellence of literary style. 

3. The essays or orations submitted in competition 
shall have each not more than 4,000 words. The win- 
ning oration shall be limited to not more than twenty 
minutes in delivery. 

4. The manuscripts in competition must be sub- 
mitted in typewritten form, on standard thesis paper, 
to the Chancellor by May 15th each year in order to 
be considered. 

5. The subject for 1907 is "What Constituted the 
Southern States the True Defenders of the Constitu- 
tion and the Union." — Catalogue of the University of 
Mississippi, April, 1907. 

In competition for this prize there were eight con- 
testants, all Seniors, two from the Literary Depart- 
ment and six from the Law Department. 

The committee, composed of Hon. J. H. Kimmons, 
Hon. H. H. Thomison, of the Oxford Bar, and Prof. 
G. G. Hurst, Principal University Training School, 
awarded the prize to Mr. Toney Arnold Hardy, Gulf- 
port, Miss. 



ORATION 

The establishment of truths — eternal, unchange- 
able, immutable — is never wrong. Recognizing no 
sanctity or infallibility in acts and opinions relating 
to the South that she should escape historical criti- 
cism or be exempt from all the tests of truth and honor, 
it is the filial duty of the living New South to recon- 
struct those ideas and opinions in so far as they are 
based on ignorance or prejudice; for as now written, 
if accepted in future years, they will consign the 
South to infamy and clothe the gallant Confederate 
soldier, as it were, with the fatal shirt of Nessus, fatal 
to honor, to energy, to noble development, to true 
life. 

That the war had its origin in opposing principles 
which in their action upon the conduct of men pro- 
duced the ultimate collision of arms, and that slavery, 
so called, was but the question, among others, by 
which these antagonistic principles which had been in 
conflict from the beginning were finally brought into 
actual and active conflict on the field of battle, may 
be assumed as an unquestionable fact. The line of 
demarcation between the opposing principles may be 
drawn on the cardinal question of construing the 
Constitution of the United States. The contest was 
between those who held it to be strictly Federal in 
character and those who maintained it to be thor- 
oughly National. If Federal, sovereignty resides in 
the people as they were originally formed in the colo- 
nies and afterwards into States; if National, sover- 
eignty resides in the people as they are merged into 
the mass, one indivisible whole; if the States are 
united by compact which prescribes no period for 



the duration of their union, then in accordance with 
the doctrine of secession, as laid down by Rawle and 
Tucker, and Webster and Story, any State may of 
right secede without any cause or reason for its with- 
drawal. 

In order to understand what led to the adoption of 
the Constitution and what kind of government was 
established by that instrument, whether Federal or 
National, it has seemed necessary to ascertain the 
origin and history of the forces in operation anterior 
to, as well as those concurrent with, the formation of 
the Constitution, which forces were really the source 
of its existence. This has been accomplished by 
searching into the authentic records of official acts, 
often forgotten, obscured or hid away, and by placing 
upon them the original, natural and rational inter- 
pretation. 

No one denies that each colony, distinct in origin, 
was separate from and independent of the others, 
the common bond of allegiance being through the 
British Crown; and that this sovereignty had not 
been jointly over all but separately 'over each, and 
might have been abandoned as to some and retained 
as to others. Yet it is avowed that when through 
repeated breaches of chartered privileges and lawless 
encroachments upon well established rights, these 
colonies threw off the common bond— the British 
Crown — that they changed politically the relation 
subsisting between them. Bold assumptions and mis- 
conceptions are these, to thrust upon the Declaration 
of Independence, which created no new institutions, 
was in no sense a charter of government, or of a con- 
stitution, the instrumentality which could have sud- 
denly and violently jerked the colonies into one para- 
mount, indivisible sovereignty of one people. These 



colonies became, according to their declaration, not 
an independent nation, but free and independent 
States. How manifestly illogical is an appeal to that 
instrument as a source of congressional power! 

This very need for a prompt and more effective 
action than could be secured by tedious and uncertain 
appeals to their constituent bodies — States now — 
led to the adoption of the Articles of Confederation: 
a compact entered into by the States, to which the 
States as free, sovereign and independent political 
communities were the parties. Was any purpose ex- 
hibited by an entry into this compact to abandon 
their sovereignty, authority or independence? On 
the contrary, is it not shown that they clung to these 
as an object of dearest, unyielding desire, demon- 
strated in strong, unmistakable language by that 
section of the Articles of Confederation which pro- 
vides that "each State retains its sovereignty, free- 
dom and independence and every power, jurisdic- 
tion and right which is not by this Confederation 
expressly delegated to the United States in Congress 
assembled"? But this "rope of sand" did not mend 
matters. That most fundamental of all the attri- 
butes of sovereignty was lacking; its behests were 
unenforcible. The impotence of treaties, financial 
disaster, commercial depression and social disorder 
caused many suggestions for enlarging powers and for 
a more efficient interstate organization. 

One of two alternatives remained: either to invest 
Congress with larger powers or to supinely allow a 
collapse of the government. As a last hope, as the 
only feasible expedient, a Federal convention was 
called, as expressed in the resolution of Congress, 
"for the sole and express purpose of revising the Ar- 
ticles of Confederation." Not to change the nature 



of the general government, but to delegate to it some 
additional powers and to adjust its machinery in har- 
mony therewith. Such was the manifest object in 
assembling the delegates. But the great question 
with us is, was the federative feature of the "Union" 
changed by the new Constitution? A resort to the 
proceedings of the convention and to the face of the 
Constitution there framed yields the best evidence. 
If the ultimate sovereignty which unquestionably 
resided in the people of the States was, in fact, aban- 
doned, and thereupon a National government endowed 
with ultimate, paramount sovereignty was presented 
to the whole American people, en masse, for adoption; 
if such a radical change was intended, contemplated, 
or in fact effected, the face of the Constitution and 
the proceedings of the convention, as a part of the 
res gestae, will truthfully disclose. "They are the 
title deeds of our political inheritance of constitutional 
liberty." 

The convention, composed of delegates chosen by 
the States, immediately upon organizing resolved 
itself into a committee of the whole to consider the 
plan of government submitted by Governor Ran- 
dolph of Virginia. To the very first resolution Gov- 
erneur Morris of Pennsylvania offered the following 
substitute : 

" Resolved, That a National Government ought to 
be established, consisting of a supreme, judicial, legis- 
lative and executive." 

Governor Randolph's plan containing this sub- 
stitute in the report of the committee came up before 
the convention for consideration. The entire bill 
was discussed pro and con; the ideas and objects of 
the members, generally, developed; and the bearing 
of this word "National" disclosed. Mr. Ellsworth of 



Connecticut moved to expunge National Government 
from the first resolve and insert Government of the 
United States in its stead, "which was agreed to nem. 
con." And wherever thereafter the words National 
Government occurred in Randolph's plan, they were 
stricken out and "Government of the United States," 
or its equivalent, was substituted. And why? The 
truth is, quite a number of delegates including Ran- 
dolph, Hamilton and Morris, were in favor of abolish- 
ing the Federal system and for effecting a change of 
sovereignty by establishing a great National Gov- 
ernment. But they were in the minority, and thus 
in the very first days of the convention were shat- 
tered the hopes of those who had dreamed of a great 
American empire. 

Writers on the Constitution have asserted that one 
people, or a nation de facto, formed the Constitution, 
and the preamble has been the chief foundation upon 
which these authors and the constitutional lawyers of 
the North have built their arguments against the 
rights of the States as sovereign co-partners. Mr. 
Webster, in his great speech in the United States 
Senate in 1833, concludes with a dissertation upon 
this preamble: 

"Finally, sirs," said he, "how can any man get over 
the words of the Constitution itself? 'We, the people 
of the United States, do ordain and establish this Con- 
stitution.' These words must cease to be a part of 
the Constitution, they must be obliterated from the 
parchment upon which they are written, before any 
human ingenuity or human argument can remove the 
popular basis on which the Constitution rests, and 
turn the instrument into a mere compact between 
sovereign States." 



10 

But facts are stubborn things, and Mr. Webster's 
theory and the facts are incompatible. Here is what 
surviving contemporaneous records report: 

On the 7th of August, 1787, a preamble reciting, 
"We, the people of the States of New Hampshire, 
Massachusetts, etc., do ordain, declare and establish 
the following Constitution," utterly negativing any 
idea of consolidation and preserving carefully the 
entity and distinct sovereignty of the States, was unan- 
imously adopted. On the 8th of September follow- 
ing a committee was appointed "to revise the style 
of" not to change the meaning of, the articles. Four 
days later they made their report adopting the ver- 
biage now found in the Constitution: "We, the people 
of the United States, etc." Why was this change in 
phraseology made and accepted? For a very obvious 
and conclusive reason. It was not known which of 
the States would ratify, and unlike the Articles of 
Confederation, unanimity was not required for its 
adoption or validity. It was to become obligatory 
on the States adopting when nine had ratified. Hence 
it would have been exceedingly inappropriate to set 
forth in advance the action of the States in their free 
and separate deliberations, a thing which no human 
prescience could forecast. 

Patrick Henry, that matchless orator and purest 
of patriots, ably and formidably opposed the ratifi- 
cation of the Constitution in the Virginia convention. 
He, too, uninformed of the underlying facts, hurls 
mercilessly bitter denunciation, burning invective, 
and unveiled sarcasm at this same preamble. 

"This proposal," said he, "of altering our Federal 
Government is of a most alarming nature. My polit- 
ical curiosity, exclusive of my anxious solicitude for 
the public welfare, leads me to ask, who authorized 



II 

them to speak the language of 'we, the people,' instead 
of 'we, the States' ? States are the characteristics 
and the soul of a confederation. If the States be not 
the agents of this compact, it must be one great, con- 
solidated National Government of all the States." 

Mr. Madison not only undermines this beautiful 
superstructure by a recital of the circumstances mak- 
ing necessary a change of phraseology, but with his 
usual accuracy of thought utterly demolishes its very 
elements. He produces from the same instrument 
cumulative proof, arriving at the inevitable conclu- 
sion, based as it is upon the rules of inexorable logic, 
that the States are the agents of this compact. He 
replied: "Who are the parties to it (the Constitu- 
tion)? The people, but not the people as composing 
one great body, but the people as composing thirteen 
sovereignties. Were it as the gentleman (Mr. Henry) 
asserts, a consolidated government, the assent of a 
majority of the people would be sufficient for its 
establishment, and as a majority have already adopted 
it, the remaining States would be bound by the act 
of the majority even if they unanimously reprobated 
it; but, sir, no State is bound by it without its own 
consent." 

Pursuant to their declaration of freedom, sover- 
eignty and independence, each of the States had pro- 
ceeded, in its own manner, at its own convenience, 
according to its own method, severally and distinctly, 
to frame and adopt a State Constitution -and to organ- 
ize the State government. Virginia, for example, on 
the 29th of the same month before the signing of the 
Declaration of Independence, performed the highest 
function of State sovereignty by establishing of her 
own free and sovereign will a Constitution which 
continued as the basis of her government until 1829. 



12 

But the time had now arrived for an entry into the 
more "perfect union." The labors of the delegates in 
the Constitutional Convention, as to that convention, 
were ended. The Constitution of the United States 
of America had been framed. Conforming to its 
enabling clause, that "the ratification of nine States 
shall be sufficient for the establishment of this Con- 
stitution between the States so ratifying the same," 
the States by separate and distinct acts began the 
consideration of its provisions. The ablest men of 
the country, in action and in council, were drawn 
together in these State conventions. Divergence of 
opinion, developed in the Constitutional Convention, 
became more marked and distinctly defined. Debates 
were dramatic, spirited and strong. The opposition 
in nearly all of the States was bitter, stubborn and 
formidable, and the small majorities assenting attest 
the reluctance with which the people acceded to even 
a partial dominion. And why such decided opposi- 
tion? Was it because the Constitution threatened 
the destruction of the autonomy of the States, central- 
izing power in a National head, and investing the 
new government with purse and sword? Only par- 
tially so. It is true that strong men criticised the 
inchoate Constitution as actually effecting these results: 
destroying the sovereignty of the States. But the 
great brunt of the opposition centered, not around 
the position that State sovereignty would be literally 
swept away; that the federative feature of the gov- 
ernment under the Articles of Confederation would 
be supplanted by a consolidated, National Govern- 
ment, but, with an abiding conviction, and a pro- 
phetic knowledge it now seems to us, that those in 
authority would pervert to selfish aggrandizement 
the letter and spirit of the Constitution; that Con- 



13 

gress would not be confined to enumerated powers, 
and would abuse the implied. The predictions of 
Patrick Henry in the Virginia convention show the 
remarkable provision and sagacity of this friend of 
liberty. In his last speech before the convention, 
imploring the people not to ratify until, as a condition 
precedent, a Bill of Rights had been appended to the 
Constitution, he said: 

"Whoever will advert to the use made, repeatedly, 
in England of the prerogative of the King, and the 
frequent attacks on the privileges of the people, not- 
withstanding many legislative acts to secure them, 
will see the necessity of excluding implications. Na- 
tions who have trusted to logical deductions have 
lost their liberty." 

Reserve covenants, as convoys of safety, accom- 
panied the ratification papers of most of the States, 
so fearful were the people, fresh from the defense of 
violated charters and faithless aggressions on inalien- 
able rights, of the accretion of power by the Federal 
Government. Massachusetts and New Hampshire in 
ratifying proposed "as a safeguard to all the States" 
an amendment reserving to the several States, to be 
by them exercised, powers not expressly granted by 
the Constitution. South Carolina accompanied her 
accession to the Union with the following resolution: 
"This convention doth also declare that no section or 
paragraph of the said Constitution warrants a con- 
struction that the States do not retain every power 
not expressly relinquished by them, and vested in 
the general government of the Union." Virginia 
announced with her ratification that the powers 
granted under the Constitution, being derived from 
the States, might be reassumed by them whenever 
the same shall be perverted to their injury and oppres- 



M 

sion,'" and further shielded the rights of the States 
by declaring that "every power not delegated remains 
with the States, and at their will." New York, to 
the same effect, with her ratification declared that 
the powers of government might be reassumed by 
the people whenever it should become necessary to 
their happiness, and that every power, jurisdiction 
and right that was not delegated to Congress remained 
to the several States, or to the respective State gov- 
ernments. Rhode Island withheld her ratification 
for three years on account of the power granted to 
Congress to regulate foreign and interstate com- 
merce. Possessed of the best harbor on the Atlantic 
coast and an advantageous natural location for the 
carrying on of commerce, she entered the Union with 
marked diffidence, and only then upon a well grounded 
assurance, as avouched at the time of her ratification, 
that the "powers of government might be resumed 
whenever it should become necessary to her happi- 
ness." Rhode Island might have never entered the 
Union! It is material to this discussion and inter- 
esting to inquire, what relation politically she would 
have borne, in that event, to the individual States 
and to the Federal Government, which is tantamount 
to asking: Would Rhode Island have been an inde- 
pendent State or a territory under the Union? It is 
a naked, historical fact that the government under 
the Constitution did actually go into operation sev- 
eral months before either Rhode Island or North 
Carolina joined the Federal Union. The action of 
these States during that interval had not, most re- 
motely, bound or civilly affected the action of the 
individual States or of the United States. Nobody 
pretended to any right of coercion, a heresy that was 
promulgated for the first time during General Jack- 



15 

son's administration by Mr. Webster, or of interfer- 
ence with the exercise by these States of any political 
sovereignty. 

It seems conclusive of argument, after noting the 
particular, separate and several action of the States 
in ratifying, where the nature and character of the 
Constitution and the resulting union, as revealed by 
the debates, clearly indicate that while many appre- 
hended danger from an encroachment upon the sov- 
ereignty of the States by constructions and implica- 
tions, yet almost universally it was the avowed under- 
standing of its nature by advocates and supporters, 
many of whom, like Hamilton and Madison, had 
favored a National Government in the Constitutional 
Convention, that it purported to be, according to the 
authoritative definition of Montesque, a Federal Con- 
stitution. 

It is premised that the Union as created by the 
Constitution is a Union of States and not of peoples; 
that the Federal Government has been instituted by 
the States and for the States. Under the Articles of 
Confederation each State in determining all ques- 
tions, it will be remembered, had but one vote irre- 
spective of population. Bold and audacious though 
it may appear, it is confidently asserted without fear 
of successful contradiction that in this respect there 
is no essential change under the new Constitution. 
The fifth article provides the manner in which amend- 
ments may be made to the 'Constitution, expressly 
stipulating therein that no amendment shall ever be 
made, in any manner, which shall deprive the States 
of their equal suffrage in the Senate. Surely this 
truly remarkable instrument, of which England's 
most illustrious statesman has proclaimed that it is 
"more than the expression of calm wisdom and lofty 



i6 

patriotism. It has its distinctive providential ele- 
ment," contains no surplusage, and this particular 
section came there through no mere inadvertence. 
What, then, if any, are the characteristic features of 
the American system of government which reflect 
the object and purpose of the delegates in the conven- 
tion in framing a provision which makes indestructible 
the equal suffrage of the States in the Senate? It is 
answered: Can any measure be passed, any law 
enacted, can any man be appointed to any office of 
dignity or profit unless a majority of the States, by 
and through their Senators, favorably concur? And, 
further, as Alexander Stephens has forcibly sug- 
gested, "In fact, can the government in any of its 
phases and function be operated at all, if a majority 
of the States in the Senate refuse their co-operation?" 
The Supreme Court of the United States has so held. 
In Cohens v. Virginia, Chief Justice Marshall uses this 
language: "It is true that if all the States or a ma- 
jority of them refuse to elect Senators the legislative 
power of the government will be suspended." Alex- 
ander Hamilton, the great exponent of a consoli- 
dated government in the Constitutional Convention, 
when the Constitution was before the New York State 
Convention for ratification, in an attempt to reconcile 
the opposition, who contended that the Constitution 
would destroy the sovereignty of the States, declared: 
"The Union is dependent upon the will of the State 
governments for its Chief Magistrate and for its Sen- 
ate The States can never lose their 

powers till the whole people of America are robbed of 
their liberties!" And 'tis well said of him that "his 
mind never gave utterance to a mightier truth." 

James Madison, whose wisdom and patriotism and 
sagacity and ceaseless action are to be found on every 



17 

page of the records of the convention, did not con- 
sider the federative character of the previously exist- 
ing Union under the Articles of Confederation essen- 
tially changed by the new Constitution. In the "Fed- 
eralist" the papers by which the States were prepared 
for intelligent consideration of the determinations of 
the convention, he thus reports of the general nature 
of the powers delegated under the Constitution: 

"If the new Constitution be examined with accuracy 
and candor, it will be found that the changes which 
it proposes consist much less in the additon of new 
powers to the Union than in the invigoration of its 
original powers. . . . The powers relating to war 
and peace, armies and fleets, treaties and finances, 
with the other more considerable powers, are all vested 
in the existing Congress under the Articles of Confed- 
eration. The proposed change does not enlarge these 
powers, it is only substituting a more effectual mode 
of administering them." 

Words of what import! The "Chief Author of the 
Constitution," as the historian Bancroft styles him, 
publishing that all the more considerable powers under 
the Constitution were vested in Congress under the 
Articles of Confederation. 

Examined in the light of the forces which were the 
source of its existence, analyzed with reference to its 
objects and purposes, the Constitution unequivocally 
sustains the principle for which the South contended 
in war and in peace, does still maintain, that all the 
functions which the United States Government pos- 
sesses spring from and depend upon a compact between 
the States just as it did under the Articles of Confed- 
eration. 

The South was the dominant power in the govern- 
ment from the foundation of the Federal Union to 



1830. Throughout these years she had been loyal 
to the Constitution, earnestly contending for rights 
which were in that bond, conscientiously adhering to 
her convictions, respecting the rights of the minority 
and battling against usurpations of powers which 
were not therein granted, though she might have 
wielded, had she been so inclined, to her own advan- 
tage. When at last all her efforts to conserve the 
Constitution and the sovereignty of the States, or to 
have them recognized in the administration of Federal 
affairs, were proven utterly hopeless, she simply, and 
as we think, with great dignity withdrew from the 
Union. What was the South to do? Stripped of all 
extraneous matter the naked issue presented to her 
was whether to maintain the Nation irrespective of 
the fundamental law or the autonomy of the States, 
or to preserve under new relationships constitutional 
principles and the rights of the States. 

Impelled by all that a people hold dear — safety, 
liberty and honor — South Carolina, in conformity with 
the legal maxim, "unum quoque dissolutor co modo qua 
calligator" (everything is dissolved by the same means 
it is constituted), met in convention and repealed her 
ordinance of 1788, the formal act which had made 
her a constituent member of the Union, and thus dis- 
solved the Union subsisting between her and the other 
States united with her under the Constitution of the 
United States of America. It is to be remembered 
that the action of South Carolina — and of the other 
Southern States — was no exercise of a novel claim; 
no new pretention advanced under the pressure of an 
emergency, but was claimed as a prerogative of sov- 
ereignty. From the very origin of the Union, in the 
Constitutional Convention, in every administration, 
in the origin and history of political parties, by 



19 

writers, statesmen, and jurists, the right of a State 
for just cause, of which she was the sole judge, to 
secede had been argued and asserted. This section 
of the country is commonly adjudged and depicted 
by the literature of the North, impetuous, hot-headed 
and revolutionary. Yet history chronicles no muti- 
nies, no Shays Rebellions, no Arnolds, no Hartford 
convention — a secret conclave gotten together in a 
time of war when the country was hard pressed by a 
foreign foe for the purpose of disrupting the govern- 
ment — or in fact anything to mar the luster of her 
brilliant career. Rich in patriotism, in intellectual 
force, in civic and military achievements, she ad- 
vances, bearing with her the proud heritage advocated 
in council chamber, justified at the bar, and vindi- 
cated in battle, principles which constituted the 
Southern States the true defenders of the Constitu- 
tion and the Union. 



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